Maryland Law Review Volume 77 | Issue 3 Article 3 Positive Legal Education: Flourishing Law Students and Thriving Law Schools Debra S. Austin Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Legal Education Commons Recommended Citation 77 Md. L. Rev. 649 (2018) This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized editor of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. POSITIVE LEGAL EDUCATION: FLOURISHING LAW STUDENTS AND THRIVING LAW SCHOOLS DEBRA S. AUSTIN* I. INTRODUCTION Culture takes years to create and years to change. Illnesses rare- ly respond in days to a treatment. Organizations that are drown- ing need to learn to swim. There are innovations and mo- ments that lead to change. But that change happens over time, with new rules causing new outputs that compound. The instant win is largely a myth.1 There is a well-being crisis in the legal field and legal education may be the catalyst. “Law students regularly top the charts as among the most dissatisfied, demoralized, and depressed of graduate-student populations.”2 The in-class Socratic method of case discussion is infamous for inducing anxiety in law students.3 Law school grades are often determined by a sin- gle final exam at the end of a grueling fifteen-week semester.4 When re- flecting on law school, many graduates “cite competition, grades, and work- load as major stressors.”5 If legal educators ignore law school stressors, 6 they will likely suppress learning and fuel illness. © 2018 Debra S. Austin. * J.D., Ph.D., Professor of the Practice, University of Denver Sturm College of Law. Many thanks to Professor Peter H. Huang, Professor Nantiya Ruan, Research Librarian Diane Burkhardt, and the Rocky Mountain Legal Writing Scholarship Group for their support of this Article. My gratitude to Professor Larry Krieger who is my well-being advocate role model. 1. Seth Godin, The Myth of Quick, SETH’S BLOG (Dec. 5, 2016), http://sethgodin.typepad.com/seths_blog/2016/12/the-myth-of-quick.html. 2. Abigail A. Patthoff, This Is Your Brain on Law School: The Impact of Fear-Based Narra- tives on Law Students, 2015 UTAH L. REV. 391, 424 (2015). 3. See, e.g., ANDREW J. MCCLURG, 1L OF A RIDE: A WELL-TRAVELED PROFESSOR’S ROADMAP TO SUCCESS IN THE FIRST YEAR OF LAW SCHOOL 33 (2d ed. 2013); SCOTT TUROW, ONE L: THE TURBULENT TRUE STORY OF A FIRST YEAR AT HARVARD LAW SCHOOL 25–26, 119 (1977); THE PAPER CHASE (Twentieth Century Fox Film Corp. 1973). 4. Rogelio A. Lasso, Is Our Students Learning? Using Assessments to Measure and Im- prove Law School Learning and Performance, 15 BARRY L. REV. 73, 79 (2010) (“In most law school courses, particularly in the critical first year, the only assessment most students experience is a three or four hour end-of-the-semester final exam.”). 5. REBECCA NERISON, LAWYERS, ANGER, AND ANXIETY: DEALING WITH THE STRESSES OF THE LEGAL PROFESSION 68 (2010). 6. Patthoff, supra note 2, at 424. 649 650 MARYLAND LAW REVIEW [VOL. 77:649 Law students start law school with strong mental health and high life satisfaction measures, and within the first year of law school, experience a significant increase in anxiety and depression.7 Law professors describe students as “the walking wounded,” and they observe students devolve to become insecure, downcast, and disengaged.8 Some law students deal with stress by self-medicating. In a 2014 study across fifteen law schools and including over 11,000 law students, researchers found that: 90% of law students had consumed alcohol within 30 days; 53% of law students consumed sufficient alcohol to get drunk in the last thirty days, compared to 39% of other graduate stu- dents; 43% participated in binge-drinking at least once in the previ- ous two weeks, compared to 36% of other graduate students; and 22% participated in binge-drinking twice in the prior two weeks, compared to 21% of other graduate students.9 In the same study, 37% of law students reported anxiety, compared to 15% of other graduate students, and 17% of law students reported depression, compared to 14% of other graduate students.10 The impairment in well-being continues beyond the first year of law school and into the early years of legal practice.11 A recent study surveyed 12,825 lawyers and discovered that 23% of licensed, employed attorneys identify as problem drinkers, 28% experience depression, and 19% suffer from symptoms of anxiety.12 Lawyers rank fourth in suicides among pro- fessionals, behind dentists, pharmacists, and doctors, and many recent law- yer suicides are linked to depression.13 Females in the legal profession rank second in suicide rates behind female first responders and corrections offic- ers.14 From July 2014 through February 2015, there were seven law student 7. Lawrence S. Krieger, Institutional Denial About the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence, 52 J. LEGAL EDUC. 112, 113–15 (2002). 8. Id. at 113. 9. Jerome M. Organ et al., Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns, 66 J. LEGAL EDUC. 116, 123–24, 127–29 (2016). 10. Id. at 136–37. 11. Krieger, supra note 7, at 114–15. 12. Patrick R. Krill, Ryan Johnson & Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. ADDICTIVE MED. 46, 46–52 (2016). 13. Rosa Flores & Rose Marie Arce, Why Are Lawyers Killing Themselves?, CNN (Jan. 20, 2014), http://www.cnn.com/2014/01/19/us/lawyer-suicides/. 14. These Jobs Have the Highest Rate of Suicide, CBS NEWS (June 30, 2016), https://www.cbsnews.com/news/these-jobs-have-the-highest-rate-of-suicide/ (summarizing results 2018] POSITIVE LEGAL EDUCATION 651 suicides and one law professor suicide.15 “Something distinctly bad is hap- pening to the students in our law schools,” and the well-being crisis bleeds into legal practice.16 The lawyer well-being crisis is acknowledged by the American Bar Association, which responded by coalescing the National Task Force on Lawyer Well-Being in August 2016.17 The Task Force released its compre- hensive report, The Path to Lawyer Well-Being: Practical Recommenda- tions for Positive Change, on August 14, 2017.18 The report makes recom- mendations to improve lawyer well-being that focus on five key themes: (1) identifying stakeholders and the role each of us can play in re- ducing the level of toxicity in our profession, (2) eliminating the stigma associated with help-seeking behaviors, (3) emphasizing that well-being is an indispensable part of a lawyer’s duty of competence, (4) educating lawyers, judges, and law students on lawyer well-being issues, and (5) taking small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.19 The Path to Lawyer Well-Being report provides thirteen recommenda- tions for all legal profession stakeholders, and then offers specific recom- mendations for judges, attorney regulators, legal employers, law schools, bar associations, professional liability carriers for lawyers, and lawyer assis- tance programs.20 The recommendations seek to acknowledge the legal profession’s mental health and substance use problems, and to change the cultures in which law students are educated and lawyers practice law.21 The report argues there are three reasons to address the lawyer well-being crisis: to enhance the effectiveness of legal organizations; to improve the profes- sional and ethical behavior of lawyers; and to help individual lawyers thrive in the physical, emotional, intellectual, occupational, social, and spiritual 22 domains of life. from the 2012 Centers for Disease Control and Prevention study on suicide rates by occupational group). 15. Organ et al., supra note 9, at 117. 16. Krieger, supra note 7, at 114–15. 17. NAT’L TASK FORCE ON LAWYER WELL-BEING, THE PATH TO LAWYER WELL-BEING: PRACTICAL RECOMMENDATIONS FOR POSITIVE CHANGE 1 (2017), https://www.americanbar.org/content/dam/aba/images/abanews/ThePathToLawyerWellBeingRep ortFINAL.pdf. 18. Id. 19. Id. at 2; see also id. at 10–11 (detailing the five core steps to enhancing lawyer well- being). 20. Id. at 4–6. 21. Id. at 7, 12. 22. Id. at 8–9. 652 MARYLAND LAW REVIEW [VOL. 77:649 The report begins with a call to leadership within each facet of the le- gal profession, urging a shift from ignoring well-being problems to taking action to create cultural change.23 The recommendations for law schools include: Identifying organizational practices that may contribute to well-being problems, and assessing changes that can be made; Educating faculty on well-being issues in the legal profession; Providing a well-being curriculum to students; Promoting student resources that address mental health and substance use disorders; Surveying student well-being anonymously; Facilitating networks to support students in recovery; and Discouraging alcohol-centered social events.24 I argue that legal educators must undertake the following initiatives in order to innovate and improve legal education and law practice: Examine the legal education-well-being relationship with the goal of minimizing the negative well-being effects of law school; Examine the law practice-well-being relationship with the goal of minimizing the negative well-being effects of law practice; and Incorporate Positive Psychology, neuroscience, and Positive Education-informed interventions to improve the law student experience and optimize learning, and to inform law schools and legal employers about methods and mechanisms to heal sick lawyers and to better develop healthy lawyers.